Scottish Court of Session Decisions

Section 3 of the Ecclesiastical Buildings and Glebes (Scotland) Act 1868 provides that “From and after the passing of this Act, if in the course of any proceedings before any presbytery of the Church of Scotland, relating to the building, rebuilding, repairing, adding to, or other alteration of churches or manses, or to the designing or excambing of sites therefor, or to the designing or excambing of glebes, or addition to glebes, or to the designing or excambing of sites for or additions to churchyards, and the suitable maintenance thereof (including the building or repairing of churchyard walls), any heritor, or the minister of the parish, shall be dissatisfied with any order, finding, judgment, interlocutor, or decree pronounced by such presbytery, it shall be competent for such heritor or minister, within twenty days of the date of such order, finding, judgment, interlocutor, or decree, to stay such proceedings by appealing the whole cause as hereinafter provided; and such appeal, on being duly intimated to the clerk of the said presbytery, shall have the effect of staying the presbytery from taking any further steps in connection with said proceedings.”

By section 4 it is provided that the appeal under the said Act “shall be taken by the appellant or his agent presenting a summary petition to the Sheriff of the county in which the parish

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concerned is situated, praying him to stay the proceedings before the presbytery, and to dispose of the same himself.”

The burgh of Arbroath was by charter of novodamus granted by James VI. in 1599 of new constituted, as it had been of old, a free burgh. By the same charter it was erected into a royal burgh. On the 5th December 1882 a petition was presented to the Presbytery of Arbroath by the Rev. James Thomson, minister of that parish, setting forth that no glebe of arable land, or pasture land in lieu thereof, had ever been designed to the minister of the said parish, and praying the said Presbytery to set apart as a glebe to him as minister of the parish, and his successors in office, a piece of ground of proper quality, extending to at least four acres of arable land, near to the church or manse. This petition was duly intimated and advertised, and thereafter the Presbytery met and considered objections taken by certain heritors to the proceedings, on the ground that the parish of Arbroath being a burghal parish without any landward district the minister was not entitled to a glebe. The deliverance pronounced by the Presbytery was in the following terms:—“The Presbytery, in respect that the minister of Arbroath is minister of a royal burgh having a landward district annexed—Find (1) That he is by law entitled to have a glebe designed to him; (2) That the heritors of the parish are bound to provide the same, and decern accordingly.” An appeal was presented to the Sheriff of the county by a committee of the heritors of the parish against this deliverance, and this note of suspension and interdict was presented. Before parties had been heard thereon in the Bill Chamber at the instance of the Provost and Town Council of Arbroath, as representing the said burgh and community, against the Presbytery of Arbroath and the minister of the parish as an individual, praying the Court to suspend the proceedings complained of, and to interdict the Presbytery from designing and setting apart a glebe, and from taking any further procedure upon the petition presented by the minister, or upon their deliverance thereon.

The complainers averred that the parish of Arbroath was a burghal parish, and there was not, and never had been, any landward parish or district attached to it, and that no glebe ever had been designed or possessed by the minister of the parish, and that the lands and territory of the burgh as contained in its charter consisted of and comprehended the whole parish with the exception of a small piece of ground known as the Abbey precinct, formerly the residence and garden of the Abbot of Aberbrothock, which lay in the centre of the town, and had long been built over. They further averred that the finding of and decerniture by the Presbytery was ultra vires.

The respondents averred that the parish while partly burghal was also to a considerable extent landward, and consisted of farms, pendicles, and gentlemen's residences, that the proprietors and tenants in this landward district paid county assessments and not burgh taxes, that they had no votes in the municipal elections of the burgh of Arbroath, and that the roads were under the charge of the county boards and not of the police commissioners of the town. They further averred that the stipend of the minister of the parish of Arbroath was provided by the heritors out of the teinds of the parish, and that he was also in possession of a manse and offices provided by the heritors.

The respondents pleaded—“(1) The present suspension is incompetent, in respect (1st) that the Presbytery having jurisdiction in the determination of all questions relating to the subject of glebes, the deliverance pronounced by them finding the respondent entitled to a glebe was validly and competently pronounced, and can only be reviewed in the manner prescribed by the statute; and (2d) that the questions raised by the present suspension are already sub judice in a court of competent jurisdiction.”

On the 15th February 1883 the Lord Ordinary refused the note and found the complainers liable in expenses.

“ Opinion.—As probably the parties may desire to bring my opinion under the review of the Inner House, it is convenient that I should give it as speedily as possible. I think it must be admitted that if the subject of the deliverance of the Presbytery appealed from is within their competence, and if they have committed no irregularity and no excess of jurisdiction, then the proper mode of correcting any error in law that may vitiate their deliverance would be by an appeal from the Presbytery to the Sheriff, and if necessary from the Sheriff to the Lord Ordinary on Teinds, as provided by the Ecclesiastical Buildings Act 1868. The statute provides that if no such appeal is taken, “every such order, finding, judgment, interlocutor, or decree, not appealed from as aforesaid, shall be final, and not subject to review.” It might, on a very critical reading of this statute, be supposed that as there has been an appeal to the Sheriff the interlocutor may also be subject to review in another way. But the meaning is clear, that there may be a review by appeal, and if that mode of review is not taken advantage of there shall be no other review. There may, however, be an appeal to the Court of Session in respect either of defect of jurisdiction on the part of the Presbytery to deal competently with the matter, or in respect of an excess of jurisdiction committed by them, that is, an assumption of jurisdiction to which they have no right. It has been laid down by the highest authorities on this subject that the Court of Session has an inherent power to restrain or correct the illegal assumption of jurisdiction by any other tribunal, civil, criminal, or ecclesiastical; and therefore if the Presbytery had proceeded to try some question of civil right which was not within their province there can be no doubt that under a note of suspension their proceedings would have been at once restrained, or if necessary quashed. If the Presbytery had exhausted their powers, as was alleged in the Chanonry case (26th Nov. 1880), to which reference has been made in the argument; if they had, for example, laid an assessment upon a parish, and then a question had arisen who were the heritors liable for the assessment, in such a case, beyond all question, the Court of Session might be appealed to. The Presbytery having decided on the matters that were competent, and the difference having arisen as to the execution of their decree, that difference must be solved by the Civil Courts, just as in the case of resort to

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suspension to determine whether a person is liable for poor's assessment or any other tax or charge laid on by competent authority. Now, clearly the present case does not fall within the latter category, because all that the Presbytery have done is to find that the minister is entitled to a glebe. The question is, whether in so doing they have exceeded their jurisdiction? It has not been shown to me that there was any irregularity in the mode of bringing this question before the Presbytery. They are the parties to designate a glebe, and until appearance was made and cause shown to the contrary there was ex facie a proper reference to them of the question whether the minister was entitled to a glebe. There might have been other defences to the application. It might have been shown that the minister already had a glebe, or that this was a burghal parish—which is the defence actually taken—and that he was not entitled to a glebe. Suppose there had been no appeal taken to the Sheriff in the manner contemplated by the Ecclesiastical Buildings Act, could it be said that when the Presbytery were asked to design a glebe, and defences were put in to the effect that the minister was not entitled to a glebe, they were doing wrong in deciding the question thus raised? I think, on the contrary, that where heritors appear and dispute the minister's right to a glebe the Presbytery would be violating the rules of justice, and committing what is known as an excess of jurisdiction, if they went on to act without determining the true question raised by the parties—whether this is a case in which the minister is entitled to a glebe? They could not move one step until that point had been determined. And how is it to be determined? Either by the Presbytery going on to decide with such light as they have, or, if the parties choose, by one or other of them availing themselves of the power given under the Ecclesiastical Buildings Act to remove the case to the Sheriff, who has power to stay proceedings and take the case into his own hand. No doubt, under the procedure which existed before the passing of the Ecclesiastical Buildings Act the Court of Session would interfere either by way of advocation in the course of the proceedings before the presbytery, or by suspension of their deliverance after the proceedings terminated, there being then no other mode of obtaining a legal decision. But it does not follow that the ground of action of the Court in such cases was excess of jurisdiction on the part of the ecclesiastical authority. I think that the Court at common law had a general power of reviewing the decisions of the presbytery on matter of law, as being the Supreme Court of Appeal from all other Courts, except those which are subject to the appellate jurisdiction of the Court of Justiciary. But now, the Ecclesiastical Buildings Act having provided a different mode of appeal, and having declared that except in this manner the orders of the presbytery shall be final and not subject to review, I think it follows that there is an implied restriction of the jurisdiction of the Court of Session to those questions which lie within their inherent right of restraining all unauthorised proceedings of inferior tribunals or authorities. I cannot say that this deliverance of the Presbytery is one that could be suspended on such grounds. The Presbytery may be wrong in law, but the mode of correcting their error in law is by an appeal to the Sheriff. The only case that might lead to any doubt in my mind is the case of Walker v. The Presbytery of Arbroath, where, although there is in the opinion of the Lord President a statement of the conditions under which the Court in its ordinary jurisdiction will review such deliverances, yet in fact the Court did proceed, as I think, to consider the appeal on its merits, and were followed in that course by the House of Lords. But it must be observed that in Walker's case it was shown, or at least alleged, that owing to the want of proper intimation the time for appealing in the statutory form had expired, and the Supreme Courts of this country have always been indulgent to appellants who came to them alleging substantial injustice, where it is shown that without fault on their part the opportunity of appealing in the ordinary way had been lost. In that case it was difficult for the Court to say, until they had heard the case on the merits, whether after all there might not be some point established involving or implying illegal assumption of jurisdiction by the ecclesiastical authority. In the present case no such difficulty presents itself to my mind. It is unnecessary that I should make an order for the hearing of this case on the merits to discover whether there has been excess of jurisdiction in the proceedings before the Presbytery, because the case has been already appealed to the Sheriff; and any excess of jurisdiction which is involved in the merits of the controversy will, I think, fall within the appeal to the Sheriff. If the alleged excess of jurisdiction only means this—as it appears to me to mean—that the Presbytery, having taken an erroneous view of the law, have pronounced an interlocutor that ought not to be enforced, that really is an objection to their finding on the merits—not upon form nor upon the assumption to deal with a matter incompetently brought before them. Therefore, though I am unwilling to deprive the appellants of any advan which they may be supposed to have in obtaining through this form of appeal an authoritative determination by the Inner House, I feel constrained to hold that the matter of this appeal falls within the scope of the statute, and consequently that appeal by suspension is excluded. Of course, my judgment on this point is reviewable, and if it is erroneous then the case will go on.”

The complainers reclaimed, and argued—That as this was a purely burghal parish the minister was not entitled to a glebe. The Ecclesiastical Buildings Act did not deprive the Court of Session of all jurisdiction in such cases, for while its appellate jurisdiction was no doubt taken away, a restraining or quashing jurisdiction remained. If the parish was proved to be purely burghal, as averred by the complainers, then the proceedings were outwith the statute. The present application for interdict could not in any sense be called premature.

Authorities— Telford v. Kirk Session of Ancrum, March 10, 1826, 4 Sh. 545; Panmure v. Presbytery of Brechin, December 12, 1855, 18 D. 197; Panmure v. Hacket, July 3, 1860, 22 D. 1351; Walker v. Presbytery of Arbroath, March 1, 1876, 3 R. 498, and 4 R. (H of L.) 1; Stewart v. Presbytery of Paisley, November 15, 1878, 6 R. 178; Magistrates of Fortrose v. Maclennan, November 26, 1880, 8 R. 124; Connal on Parishes, p. 357.

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Argued for respondents—The whole question depended upon the fact whether there was a landward district attached to this burghal one, and the tribunal appointed by statute to determine such a question was the Sheriff Court, with an appeal to the Lord Ordinary on Teind Causes. The Presbytery was quite within its powers in what it had done; there was here a competent jurisdiction, and no informality had been averred. The remedy here sought was not a suitable one, and no proper case had been made out for a suspension—Mackay's Court of Session Practice, i. 220. The Act (sec. 14) provides that “All orders, findings, judgments, interlocutors, or decrees pronounced by any Sheriff under the authority of this Act shall be final and conclusive, and not subject to review by any Court whatsoever, unless an appeal shall be taken to the Lord Ordinary against the same, in manner hereinafter mentioned.”

At advising—